Protecting IP Rights at International Level (PDF)

**Protecting IP rights at International level while avoiding restrictive practices** **Anti-competitive practices include a range of activities such as:** (see [here](https://www.wipo.int/patent-law/en/developments/competition.html)) - Abusive exclusionary conduct by a dominant company - Refu...

**Protecting IP rights at International level while avoiding restrictive practices** **Anti-competitive practices include a range of activities such as:** (see [here](https://www.wipo.int/patent-law/en/developments/competition.html)) - Abusive exclusionary conduct by a dominant company - Refusal to provide certain goods or to grant licenses on market conditions - Charging excessive prices - Vertical arrangements between suppliers and distributors - Other agreements among firms which lead to the distortion of competition on the market. - Evergreening of Patents (Novartis vs UOI) - Parallel importation (Kapil Wadhwa vs Samsung) **Advantage of International Filing** The Madrid System is: (see [here](https://www.wipo.int/web/madrid-system/madrid_benefits)) Convenient: File a single international trademark application in one language, and pay one set of fees in one currency, to apply for protection of your brands in multiple territories simultaneously. Manage your international trademark portfolio centrally and digitally through WIPO, and expand protection of your brands into new markets quickly and easily. Global: Register and manage your trademark in all or any of the territories covered by the Madrid System, representing over 80% of world trade. Cost-effective: Save time and money by filing one application, rather than a bundle of national or regional trademark applications; no need to pay for translations or hire a representative in each country **Minimising restrictive practices** **Control of Anti-Competitive Practices in Contractual Licenses (see [here](https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm#anticompetitive))** **Article 40 of the TRIPS Agreement:** - **Recognition of Adverse Effects:** Some licensing practices or conditions related to intellectual property (IP) rights can restrain competition. Such practices may negatively impact trade and impede the transfer and dissemination of technology. - **Adoption of Measures:** Member countries are allowed to adopt appropriate measures to prevent or control abusive and anti-competitive practices in IP licensing. These measures must be consistent with the other provisions of the TRIPS Agreement. - **Consultation Mechanism:** A country wishing to take action against anti-competitive practices involving companies from another Member country can initiate consultations with that Member. During consultations, the involved countries can exchange publicly available non-confidential information relevant to the issue. Other information can also be shared, subject to domestic law and mutually satisfactory agreements concerning confidentiality safeguards. - **Reciprocal Consultations:** A country whose companies are subject to anti-competitive action in another Member country can also request consultations under similar conditions. This ensures reciprocal opportunities for discussions and resolution. Article 8 of TRIPS Principles 1\. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement. 2\. Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology. **OECD IP Recommendations on Competition Law and IP Rights** (Organisation for Economic Co-operation and Development) (see [here](https://one.oecd.org/document/DAF/COMP(2019)3/en/pdf)) Remedy for harmful effects of restrictive business practices related to the use of trademarks, ensuring these practices are not essential to the legitimate protection of the trademark owner\'s exclusive right. **Recommended Government Measures:** **Eliminate Import Restrictions:** Remove restrictions on the importation of products legitimately marked abroad with the same trademark, especially if such restrictions aim to maintain artificially high prices or are otherwise anti-competitive. **Prohibit Restrictive Practices:** - **Horizontal Market Division Agreements:** Agreements among competitors to divide markets. - **Trademark-related Sales/Resales Restraints:** Restrictions imposed on the sales or resales by licensees. - **Tying Arrangements:** Forcing licensees to buy additional, unwanted products as a condition of obtaining a trademark license. - **Price Maintenance Agreements:** Agreements involving licensees or distributors to maintain fixed prices. **1989 OECD Licensing Recommendation** Intellectual property rights are essential for a competitive, market-based economy. Generally, IP rights and their licensing are procompetitive, although there are risks of anti-competitive effects. Apart from purely cartelizing agreements, the risk of anti-competitive effects in licensing arrangements should be assessed on a case-by-case basis. Assessment under competition law should be based on sound economic analysis. Article 31 of TRIPS Compulsory licensing is a legal mechanism allowing governments to authorize the use of a patented invention without the patent holder\'s consent, primarily to prevent monopolistic practices harmful to public welfare. This tool ensures that patents do not restrict access to essential goods, medicines, or technologies, particularly in situations of national emergency, extreme urgency, or for public non-commercial use. It balances the interests of patent holders with public needs by requiring efforts to obtain authorization on reasonable commercial terms before invoking compulsory licensing, except in urgent cases. The scope and duration of such use are limited, ensuring it is non-exclusive and non-assignable, primarily for domestic supply, with patent holders receiving adequate remuneration. Compulsory licensing also addresses anti-competitive practices through judicial or administrative processes, maintaining fairness and fostering innovation and technology transfer.